Constitutional Structure as a Limitation on the Scope of the Law of Nations in the Alien Tort Claims Act

41 Pages Posted: 14 Jun 2006 Last revised: 15 May 2013

See all articles by Donald J. Kochan

Donald J. Kochan

Antonin Scalia Law School at George Mason University

Date Written: December 1, 2011

Abstract

Jurisdiction matters. Outside of the set of jurisdictional constraints, the judiciary is at sea; it poses a threat to the separation of powers and risks becoming a dangerous and domineering branch. Jurisdictional limitations serve a particularly important function when the judiciary is dealing with issues of international law. Since much of international law concerns foreign relations, the province of the executive and, in part, the legislature, the danger that the judiciary will act in a policy-making role or will frustrate the functions of the political branches is especially great. The Framers of the Constitution were particularly concerned with constructing a document in which the government would speak with one voice in its international dealings. Because the judiciary is insulated from political control, court decisions defining international law would not only be improper, but would also frustrate the intent of creating a unitary voice in foreign relations. These questions of proper jurisdictional limits in relation to international law are implicated in the interpretation of the Alien Tort Statute ("ATS"). Jurisdictional questions arise when applying this statute, particularly with reference to the meaning of the law of nations and the consequent limits on the judiciary's cognizance over that law.

This Article examines the ATS and suggests that the application of its jurisdictional grant has been unconstitutionally expanded by the courts and currently places a responsibility and power with the judiciary that is both inconsistent with constitutional structure and dangerously unwise.

Keywords: Kiobel, corporate liability, International Law, Alien Tort Statute, Alien Tort Claims Act, Customary International Law, Constitutional Law, Separation of Powers, International Relations, Law of Nations, Article III, Human Rights, Torts, Corporate Liability, Public Choice

JEL Classification: F00, H00, H10, H11, H19, K00, K10, K32, K33, N50

Suggested Citation

Kochan, Donald J., Constitutional Structure as a Limitation on the Scope of the Law of Nations in the Alien Tort Claims Act (December 1, 2011). Cornell International Law Journal, Vol 31, pp. 153, 1998, Chapman University Law Research Paper No. 08-16, Available at SSRN: https://ssrn.com/abstract=907540

Donald J. Kochan (Contact Author)

Antonin Scalia Law School at George Mason University ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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